*Surprisingly Clear Words: Noha on Keyword Advertising

Ever since I’ve started working on the topic of Keyword Advertising, the Wein&Co decision has always remained a mystery to me as the Austrian Supreme Court (OGH) stated in it, that Top-Ads (ads above the search results, displayed on a light blue or yellowish background) should be seen/treated as being a part of the search results. This would imply that the OGH alleges Google of paid placement = selling ad space within its search results.

In a earlier post I was already wondering to what extent the court might have been influenced by screenshots handed in by the plaintiff. Sadly enough the OGH has upheld and repeated its highly disputable view also in its quite recent Bergspechte reference.

I have always disagreed with the OGH on this certain issue and thus I was very -pleasantly- surprised to find a quite clear & explicit statement in an article by Birgit Noha [1] referencing to Baars/Troge [2], stating that:

“These arguments by the OGH give room to doubt whether the court has actually understood the setting of Keyword Advertising. One might suspect that the OGH got the principles of trademark law and the principle of diversion [betweens ads and content] mixed up[2].” (Roughly translated by autrotrabant)